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Prestenbach v. Collins

Court of Appeals of Mississippi

December 3, 2013

GARRETT J. PRESTENBACH, JR. AND IRENE E. PRESTENBACH, APPELLANTS
v.
J. GERALD COLLINS, APPELLEE

COURT FROM WHICH APPEALED: MARION COUNTY CHANCERY COURT. DATE OF JUDGMENT: 08/27/2012. TRIAL JUDGE: HON. JOHNNY LEE WILLIAMS. TRIAL COURT DISPOSITION: GRANTED SUMMARY JUDGMENT IN FAVOR OF APPELLEE.

FOR APPELLANTS: L. CLARK HICKS JR., R. LANE DOSSETT.

FOR APPELLEE: SAMUEL S. MCHARD.

BEFORE LEE, C.J., MAXWELL AND FAIR, JJ. LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, ROBERTS, CARLTON, FAIR AND JAMES, JJ., CONCUR. IRVING, P.J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.

OPINION

NATURE OF THE CASE: CIVIL - REAL PROPERTY

MAXWELL, J.

¶1. Garrett Prestenbach Jr. seeks specific performance of an option contract to purchase Gerald Collins's property. The problem is, at the time Prestenbach claims he validly exercised his option, he indisputably lacked the financing to purchase the property. So even if Prestenbach's option-to-purchase contract had become a contract to sell, Prestenbach is not entitled to the remedy of specific performance because he cannot show he was " ready, willing, and able" to purchase the property

Page 556

within a reasonable time following the option period. We thus affirm the chancellor's grant of summary judgment in Collins's favor.

Background Facts and Procedural History

¶2. Collins owns approximately 200 acres of farmland in Marion County, Mississippi, which he wants to sell. In the summer of 2011, he approached Prestenbach, whose mother owns property near Collins's. Prestenbach expressed interest in buying 150 acres, if he could obtain a low-interest loan through the United States Department of Agriculture (USDA).

¶3. To enable Prestenbach to apply for a USDA loan, the two men signed a USDA form option-to-purchase contract on September 15, 2011. [1] Under the terms of the USDA form option, Prestenbach would have a one-year option to purchase from Collins 150 acres for $500,000. This option would be irrevocable for the first three months and, after that, terminable upon ten days' notice by Collins. If Prestenbach received termination notice, he could accept the offer within the ten days by giving Collins written notice of acceptance.

¶4. During the next three months, Prestenbach attempted to get approval for a $225,000 loan from the USDA, [2] while Collins continued to market his property. Collins's efforts were met with success--another buyer offered to pay cash for the entire 200 acres. But Prestenbach's loan application got tied up in red tape. In late October, Collins told Prestenbach about the other buyer. Collins insisted it had always been part of their agreement that Collins could keep looking for another buyer, despite the form language about the option being " irrevocable" for three months. According to Collins and his attorney, Prestenbach acknowledged to them that he was having trouble getting his government loan approved. [3] Collins further attested that Prestenbach told him to go ahead and sell to another buyer.

¶5. Prestenbach strongly refutes this assertion. In fact, in mid-November Prestenbach recorded the option to prevent Collins from selling his property to the other interested buyer. Collins responded by sending a letter notifying Prestenbach of his intent to terminate the option contract on December 15 (exactly three months from when the USDA form ...


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